The draft could easily clarify the relationship between its objective “positive agreement” standard and the underlying subjective harm sought to be prevented. It could define consent as “positive agreement, communicated by either words or actions, indicating willingness to engage in a specific act of sexual penetration or sexual contact.” Alternatively, it could define consent as “positive agreement, communicated by either words or actions, indicating that a specific act of sexual penetration or sexual contact is welcome.” Indeed, by elaborating what the “words or actions” are meant to show, the draft could profitably dispense with the term “agreement” altogether. Instead, the draft merely hints at the different approaches that might be taken to this central question.
The word “agreement” implies that a partner’s simple willingness to engage in sexual activity is the subjective standard the law seeks to protect. After all, people agree all the time to do things they wish they didn’t need to— for example, selling property or buying goods at the best price offered, rather than at the price hoped for. However, adding “positive” to the phrase “positive agreement” must mean something. One might argue that “positive” simply conveys the idea that “agreement” should not be inferred from mere passivity, but if that is the case, then either “positive” or “words or actions” become surplusage.
Does “positive” imply that the partner must have more enthusiasm for the sex act in question than simple willingness? One dictionary definition might support that conclusion: it focuses on whether an expression is without “reservation.”66 The commentary does not clearly so state, but it does not clearly indicate to the contrary either. Its references to the partner’s subjective mental state sometimes use the term “willingness”67 but sometimes suggest
66. Positive, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1770 (1986) (“[E]xpressed clearly, certainly, or peremptorily with no doubt, reservation, or unclarity.”); see also Positive, XII OXFORD ENGLISH DICTIONARY 166 (2d ed. 1989) (“Explicitly laid down; expressed without qualification; admitting no question; stated, explicit, express, definite, precise; emphatic; objectively certain.”) (emphasis added).
67. See, e.g., APRIL DRAFT, supra note 1, at 46 (“Permitting persistence in the face of verbal or behavioral indicia of unwillingness unjustly privileges the desires of the aggressor
more.68 The idea that a partner must be more than willing to engage in sexual activity has been both championed69 and questioned.70
The only time the statutory text refers to the partner’s subjective mental state is when it refers to whether the partner found the act “welcome.” This reference appears in the provision involving intimate partners, creating an affirmative defense for sex acts with an intimate, cohabiting partner who is unconscious or extremely intoxicated.71 The language does not appear in any general provision on consent, but nothing in the commentary explains why one would apply a “welcomeness” standard in one setting but not the other. In other words, if an intimate partner is willing but not enthusiastic about being penetrated while asleep or drunk, why should that be criminal if willingness negates the subjective harm in penetration of a conscious partner? Distinctions can be drawn, but the commentary does not do so.72
over those of his or her partner.”); id. at 47 (“The very fact of that ambiguity, however, insures that error will be inherent in any rule for assessing unwillingness for legal purposes.”); id. at 54 (“Body language such as taking off the other party’s clothes and aggressively touching him or her in an ever-more-intimate way may not inevitably signal willingness to proceed to intercourse, but it can be sufficiently clear to leave little doubt about the intentions of the person actively initiating these steps.”).
68. See, e.g., id. at 54 (discussing how the draft “places the onus on the sexually more aggressive party to ensure that each new act is welcome and desired”); id. at 127 (“If the actor honestly and sincerely believes the date went well and a sexual overture is welcomed, there should not be liability even if the other person in fact found the date insufferable, and yet continued to be politely accommodating.”).
69. For a review of some of the approaches, and criticisms of their workability as legal standards, see SCHULHOFER, supra note 24, at 82–88.
70. See Larry Alexander, The Ontology of Consent, 55 ANALYTIC PHIL. 102, 108 (2014) (consent is the mental state of waiving one’s rights, and waiving means “mentally accepting without objection another’s crossing one’s moral or legal boundary”); see also Kenneth W. Simons, The Conceptual Structure of Consent in Criminal Law, 9 BUFF. CRIM. L. REV. 577, 583 (2006) (“[O]ne can easily fall into the mistake of thinking that legally valid consent to x requires that S eagerly embrace x as that which she desires or chooses in an unqualified way, i.e., that which she would also desire or choose if she believed she was facing a different and more favorable set of options. But this view is too narrow, Westen emphasizes, for it would entail that a woman does not legally consent to sex if she chooses it only because she prefers this to her partner breaking up with her, or even if she merely prefers this to waiting until later in the evening and thereby temporarily disappointing her partner. (For in each case, she does not obtain what she most prefers— the ability to decline intercourse without suffering the loss of the relationship, or the ability to decline intercourse at a particular time without suffering the emotional harm of upsetting her partner.).” (reviewing PETER WESTEN, THE LOGIC OF CONSENT: THE DIVERSITY AND DECEPTIVENESS OF CONSENT AS A DEFENSE TO CRIMINAL CONDUCT (2004)).
71. APRIL DRAFT, supra note 1, § 213.9(5).
72. For example, one could conceptualize the Intimate Partners provision as establishing an overbroad rule—requiring welcomeness—to guard against sex acts the unconscious partner was not willing to tolerate, in light of the special risks of error in this setting.
On the other hand, the provision on Sexual Penetration by Coercion presupposes that positive agreement can be established by acts that signal something less than enthusiasm for the sexual encounter.73 It criminalizes sex acts obtained by employing certain threats, like a threat to accuse the partner of a criminal offense, but the statute applies only when the actor “obtains the [partner’s] consent” by such a threat.74 If “consent”—defined as “positive agreement”—required indicia of enthusiasm for the sex act, the crime of Sexual Penetration by Coercion presumably would not apply to most sexual acts induced by threats. Accordingly, the provision implies that “positive agreement” is established by a partner’s simple willingness to go along with a sex act, in preference to a bad alternative or as an accommodation to a more eager partner.75
For simplicity, the remainder of this Article assumes that the draft consent provisions are designed to guard only against sex acts imposed on an unwilling partner.